2022 Antitrust Escalation? What is the meaning behind the opening of 13 consecutive tickets

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From the perspective of operators, compliance management is the basic rule for participating in the market economy. Relevant enterprises should operate according to law and have a reverence for the law, especially when the business model is profitable but suspected of violating the law, and it must be able to keep the bottom line.

Reporter Zhang Wei trainee reporter Shen Zhongliang

Recently, the State Administration for Market Regulation has concentrated on 13 cases of illegal implementation of administrative penalties for concentration of undertakings, involving leading Internet companies such as Alibaba and Station B. As soon as the news came out, it aroused widespread concern from the outside world.

There are many interpretations of this from the outside world. Some people believe that this is the "first fire of anti-monopoly in 2022", others believe that it is just a "manifestation of normalized law enforcement", and some views believe that this move once again shows that "Internet platform enterprises are the focus of anti-monopoly law enforcement agencies".

Industry experts pointed out in an interview with the "Rule of Law Daily" reporter that this is mainly a centralized clearance of the previous "should be applied for", which released a positive signal: it can make market entities clear expectations, help enhance the confidence of market players, and thus promote economic development in 2022.

Where are the 13 tickets?

The reporter of "Rule of Law Daily" combed and found that many of the 13 administrative punishment cases released this time violated Article 21 of the Anti-Monopoly Law, constituting a failure to declare the illegal implementation of the concentration of undertakings in accordance with the law, and the assessment believed that it did not have the effect of eliminating or restricting competition. Pursuant to Articles 48 and 49 of the Anti-Monopoly Law, enterprises that fail to declare illegal concentrations of undertakings in accordance with the law shall be fined RMB500,000.

According to Article 21 of the Anti-Monopoly Law, if the concentration of undertakings meets the declaration standards prescribed by the State Council, the business operators shall make a declaration to the Anti-Monopoly Law Enforcement Agency under the State Council in advance, and if they do not declare, they shall not implement the concentration.

So, what is "concentration of undertakings"? Article 20 of the Anti-Monopoly Law stipulates: "Concentration of undertakings refers to the following circumstances: (1) merger of undertakings; (2) control of other business operators by obtaining equity or assets; (3) business operators acquiring control over other business operators through contracts or other means or being able to exert decisive influence on other business operators." ”

For example, two penalty decisions involving Alibaba show that Alibaba (China) Network Technology Co., Ltd. and Guiyang Xingli Department Store Group Co., Ltd. set up a joint venture, and Hangzhou Ali Venture Capital Co., Ltd., Zhengzhou Xunjie Trading Co., Ltd., and Guiyang Radio and Television Media Group Co., Ltd. acquired the equity of Guizhou Pan Asia Information and Communication Network Technology Co., Ltd., all of which failed to declare illegal implementation of the concentration of undertakings in accordance with the law and were punished.

Lu Benfu, a professor at the University of the Chinese Academy of Sciences and a member of the expert advisory group of the Anti-Monopoly Committee of the State Council, analyzed that this is the fifth time that the State Administration of Market Regulation has announced the illegal implementation of concentration of undertakings in the platform field after the central government requires strengthening the supervision of the platform economy in 2021, and the number is the highest. As for why there are so many quantities, in Lü Benfu's view, it is mainly a centralized clearance of the previous "should be applied for" in the early stage. "In the past, the shareholder structure of many platform enterprises was the VIE structure (VIE, that is, the Variable Interest Entity, which is a variable interest entity, and the VIE structure is also called "agreement control", the essence of which is a way for domestic entities to achieve overseas listing), and in the past there was a certain ambiguity in the identification of their attributes. At present, the anti-monopoly law has a clear guide for dealing with these mergers and acquisitions, but the connection between the new and old laws is worthy of attention. In addition, there are many advantages to clearing zero as soon as possible, so that market players can clearly understand their expectations, which will help enhance the confidence of market players and thus promote economic development in 2022. ”

Anti-monopoly law enforcement is normalized

In the past 2021, anti-monopoly moves have continued, which has been called China's "anti-monopoly year" and "platform economy anti-monopoly first year".

On February 7, 2021, the Anti-Monopoly Commission of the State Council issued the Anti-Monopoly Guidelines on the Platform Economy, emphasizing that the Anti-Monopoly Law and supporting laws and regulations apply to all industries, treat all types of market entities equally, fairly and justly, and aim to prevent and stop monopolistic behavior in the platform economy and promote the orderly, innovative and healthy development of platform economy norms.

On October 19, 2021, the Anti-Monopoly Law (Draft Amendment) was first submitted to the 31st Session of the Standing Committee of the 13th National People's Congress for initial deliberation. In view of the outstanding problems existing in the implementation of the Anti-Monopoly Law, the anti-monopoly related system has been further improved, and the punishment for monopolistic behavior has been increased, so as to provide a clearer legal basis and a more powerful institutional guarantee for strengthening anti-monopoly and preventing the disorderly expansion of capital.

On November 8, 2021, the National Anti-Monopoly Administration was officially established. The State Administration for Market Regulation has added the "State Anti-Monopoly Administration" sign, set up the Competition Policy Coordination Department, the Anti-Monopoly Law Enforcement Department I, and the Anti-Monopoly Law Enforcement Department II, which are responsible for anti-monopoly related work, and at the same time set up competition policy and big data centers.

Wang Jian, dean of the School of Law and Politics of Zhejiang Sci-Tech University and a member of the expert advisory group of the Anti-Monopoly Committee of the State Council, believes that the listing of the National Anti-Monopoly Bureau is an inevitable requirement for strengthening anti-monopoly and preventing the disorderly expansion of capital, and at the same time, it has also improved the status and authority of the mainland's anti-monopoly law enforcement agencies, further enriched the regulatory force, normalized anti-monopoly law enforcement, and greatly improved regulatory efficiency.

It is understood that in 2021, the market supervision department will strictly review the cases of the concentration of business operators on the platform in accordance with the law, improve the efficiency of the anti-monopoly review of the concentration of business operators, and reduce the institutional transaction costs of enterprises. From January to October 2021 alone, the number of cases filed and concluded increased by 48.7% and 50.4% compared with the same period last year, and the average time for filing and concluding cases was more than 1/3 shorter than before the institutional reform.

It is recommended that enterprises self-examine and self-correct

The recently held national market supervision work video conference put forward 8 key requirements for market supervision work in 2022. Among them, it is particularly proposed to "deeply implement the fair competition policy, improve the regulatory rules of supervision according to law, improve the regulatory chain before and after the event, promote the improvement of departmental coordination and regulatory synergy, comprehensively grasp the key points of monopoly regulation, improve the ability to regulate fair competition, and promote high-quality development at a deeper level and at a higher level."

In the face of the new situation and new requirements of anti-monopoly, how should relevant enterprises do a good job of self-examination and self-correction and compliance?

Zhang Chenying, director of the Competition Law Research Center of Tsinghua University Law School and a member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, believes that from the perspective of business operators, compliance management is the basic rule for participating in the market economy. Relevant enterprises should operate according to law and have a reverence for the law, especially when the business model is profitable but suspected of violating the law, and can keep the bottom line. "These enterprises also need to follow up on anti-monopoly law enforcement, judicial rules and cases in a timely manner, and make compliance self-examination a regular task." Examine yourself for the negative evaluation behavior of the target penalty or effective judgment, and when your own behavior is the same, you should take the initiative to correct and operate legally and compliantly. ”

Meng Yanbei, vice president of the Asia-Pacific Law Research Institute of Chinese Min University and member of the expert advisory group of the Anti-Monopoly Committee of the State Council, reminded that especially platforms with market dominance should be vigilant and concerned about whether it is possible to use its massive data to form advantages in entering new businesses; whether it is possible to vertically exclude in the upstream and downstream markets through the control of traffic entrances, which will adversely affect the entry of new entrepreneurs into the market; whether it is possible to use its basic market advantage position to expand its market position in other fields through "self-preferential treatment" Whether it is possible to eliminate future competitive threats by acquiring start-ups and avoid engaging in market behavior that may pose a competitive risk.

"Considering that the Internet platform enterprises are in the bilateral market, the market is characterized by network effects, economies of scale and big data, and the result is that the market concentration is getting higher and higher, and the competition space of the latecomers is getting smaller and smaller." Coupled with the fact that these companies instinctively exclude restrictions on competition, strengthening antitrust in the digital field will become a priority for antitrust enforcement in various countries. Wang Xiaoye, a researcher at the Institute of Law of the Chinese Academy of Social Sciences and a well-known anti-monopoly law expert on the mainland, said that in short, because Internet platform enterprises obviously have a dominant market position, they should be particularly vigilant not to violate the anti-monopoly law, especially not to abuse the market advantage position to exclude and restrict competitors, nor to exclude, restrict and distort competition in the Internet market through mergers and acquisitions, including mergers and acquisitions of start-ups.

Xiao Jiangping, director of the Competition Law Research Center of Peking University and secretary general of the Economic Law Research Association of the China Law Society, believes that the Central Economic Work Conference has set the tone of economic work in 2022 as "steady words and steady progress", focusing on stabilizing the macroeconomic market and emphasizing the need to continue to stimulate the vitality of market players. On the basis of strengthening competition enforcement in 2021, it is necessary to sum up experience and properly handle the relationship between regulatory supervision and development. At the level of operators, it is necessary to learn the lessons of the punished operators and do a solid job in compliance work.

Source: Rule of Law Daily